Court of Appeals of Texas, Seventh District, Amarillo
IN THE INTEREST OF D.T. AND A.T., CHILDREN IN THE INTEREST OF J.C., A CHILD
Appeal from the County Court at Law No. 1 Randall County,
Texas Trial Court No. 72, 269-L1 and 72, 268-L1, Honorable
Jack M. Graham, Presiding
QUINN, C.J., and CAMPBELL and PARKER, JJ.
T. Campbell, Justice
two appeals arise from final orders in two
termination-of-parental-rights cases. Petitioner in the trial
court and appellee in both cases is the Texas Department of
Family and Protective Services. In case number
07-19-00071-CV, the mother and the father each appeal the
termination of their parental rights to D.T. (age six at the
time of final order) and A.T. (then age three). In case
number 07-19-00072-CV, the mother appeals the termination of
her parental rights to J.C. (then age eight). J.R.C. is the
biological father of J.C. and was a party in the trial court
in case number 07-19-00072-CV but did not appeal the order
terminating his parental rights.
number 07-19-00071-CV we will affirm the order of the trial
court terminating the mother's parental rights to D.T.
and A.T. and appointing the Department permanent managing
conservator of the children. We will reverse and remand for a
new trial that portion of the trial court's final order
terminating the parental rights of the father to D.T. and
A.T. We will affirm the trial court's final order
terminating the mother's parental rights to J.C. in case
2017, the Department received a report alleging the mother
and the father were using drugs and neglecting the
supervision of their children, D.T. and A.T., and the
mother's child, J.C. The children's caseworker,
Alyssa Petty, testified at final hearing the Department was
initially concerned with the father's anger, arguments
and domestic violence between the mother and the father, and
the family's unsanitary living conditions. Sophia Munoz,
a Department investigator, testified the family was homeless.
2017 drug screens of the family showed the mother was
positive for methamphetamine, amphetamines, and cocaine, the
father was positive for methamphetamine and cocaine, J.C. was
positive for cocaine, and A.T. was positive for amphetamines
and methamphetamine. The Department filed the suits affecting
the parent-child relationship that month. The children were
removed, and the Department was appointed temporary sole
managing conservator of each child.
cases were tried together to the bench in January 2019.
Following the close of evidence, the children's guardian
ad litem and attorney ad litem recommended termination of the
mother and the father's parental rights to D.T. and A.T.
and termination of the mother's parental rights to J.C.
He recommended as an alternative appointment of the
Department as permanent managing conservator of the three
children with the mother and the father named possessory
termination orders in both cases, for each of her three
children, the court found the mother had (1) knowingly placed
or knowingly allowed the child to remain in conditions or
surroundings which endangered the physical or emotional
well-being of the child; (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct which
endangered the physical or emotional well-being of the child;
and (3) failed to comply with the provisions of a court order
that specifically established the actions necessary for the
mother to obtain the return of the child. It further found
termination of the mother's parental rights was in the
best interest of D.T., A.T., and J.C. The court's final order
in case number 07-19-00071-CV also terminated the
father's parental rights to D.T. and A.T. on findings
that he (1) knowingly placed or knowingly allowed the child
to remain in conditions or surroundings which endangered the
physical or emotional well-being of the child; and (2)
engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangered the physical or
emotional well-being of the child and that termination of his
parental rights was in the best interest of D.T. and
Constitution protects "[t]he fundamental liberty
interest of natural parents in the care, custody, and
management" of their children. Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). Parental rights, however, are not absolute, and courts
have recognized it is essential that the emotional and
physical interests of a child not be sacrificed merely to
preserve the parental rights. In re C.H., 89 S.W.3d
17, 26 (Tex. 2002). The Due Process Clause of the United
States Constitution and section 161.001 of the Texas Family
Code require application of the heightened standard of clear
and convincing evidence in cases involving involuntary
termination of parental rights. In re E. N.C., 384
S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d
256, 263 (Tex. 2002). "Clear and convincing
evidence" is that "measure or degree of proof that
will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be
established." In re N.G., No. 18-0508, 2019
Tex. LEXIS 465, at *7 (Tex. May 17, 2019) (per curiam)
(quoting Tex. Fam. Code Ann. § 101.007).
Family Code permits a trial court to terminate parental
rights if the movant proves by clear and convincing evidence
that the parent committed an action prohibited under section
161.001(b)(1) and termination is in the child's best
interest. Tex. Fam. Code Ann. § 161.001(b)(2);
Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).
Only one predicate finding under section 161.001(b)(1) is
necessary to support an order of termination when there is
also a finding that termination is in a child's best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.-
Amarillo 2005, no pet.). Thus a termination order may be
affirmed if it is supported by legally and factually
sufficient evidence of any statutory ground on which the
trial court relied for termination, and the best interest
finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex.
App.-San Antonio 2012, pet. denied).
the mother and the father challenge the legal and factual
sufficiency of the evidence supporting the court's
termination orders. Under the legal sufficiency analysis, we
examine all of the evidence in the light most favorable to
the challenged finding, assuming the "factfinder
resolved disputed facts in favor of its finding if a
reasonable factfinder could do so." In re
J.F.C., 96 S.W.3d at 266. We disregard all contrary
evidence the factfinder could have reasonably disbelieved or
found incredible. Id. However, we take into account
undisputed facts that do not support the finding, so as not
to "skew the analysis of whether there is clear and
convincing evidence." Id. If the record
presents credibility issues, we must defer to the
factfinder's determinations provided they are not
unreasonable. In re J.P.B., 180 S.W.3d 570, 573
factual sufficiency review, a court of appeals must give due
consideration to the evidence the factfinder reasonably could
have found to be clear and convincing. In re C.H.,
89 S.W.3d at 25. We determine whether the evidence is such
that a factfinder could reasonably form a firm belief or
conviction about the truth of the Department's
allegations. Id. In doing so we consider whether
disputed evidence is such that a reasonable factfinder could
not have resolved that disputed evidence in favor of its
finding. Id. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.
In re J.F.C., 96 S.W.3d at 266.
161.001(b)(1)(D) permits termination when clear and
convincing evidence shows that the parent "knowingly
placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional
well-being of the child." Tex. Fam. Code Ann. §
161.001(b)(1)(D). Subsection (D) requires a showing that the
environment in which the child was placed posed a danger to
the child's physical or emotional health, and it permits
termination based on a single act or omission by the parent.
In re K.C.F., No. 01-13-01078-CV, 2014 Tex.App.
LEXIS 6131, at *32-34 (Tex. App.-Houston [1st Dist.] June 5,
2014, no pet.) (mem. op.) (citation omitted). Subsection (D)
concerns the child's living environment, rather than the
parent's conduct, though parental conduct may produce an
endangering environment. Jordan v. Dossey, 325
S.W.3d 700, 721 (Tex. App.-Houston [1st Dist.] 2010, pet.
denied). It is not necessary that a parent's conduct be
directed at the child or that the child be injured, but the
parent must at least be aware of the potential for danger to
the child in such an environment and must have disregarded
that risk. In re S.M.L., 171 S.W.3d 472, 477 (Tex.
App.-Houston [14th Dist.] 2005, no pet.). Illegal drug use
and criminal activity support a conclusion that the
child's surroundings endanger her physical or emotional
well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.-Fort Worth 2003, no pet.). The relevant time frame under
this subsection is prior to the child's removal. In
re O.R.F., 417 S.W.3d 24, 37 (Tex. App.-Texarkana 2013,
assess the trial court's best-interest determination, we
may consider the factors itemized in
Holley. While the Holley "listing is
by no means exhaustive, [it] does indicate a number of
considerations which either have been or would appear to be
pertinent." Holley, 544 S.W.2d at
"The absence of evidence about some of these
considerations would not preclude a fact-finder from
reasonably forming a strong conviction or belief that
termination is in the child's best interest, particularly
if the evidence were undisputed that the parental
relationship endangered the safety of the child." In
re C.H., 89 S.W.3d at 27. In some circumstances,
evidence of even one Holley factor may be
sufficient. Jordan, 325 S.W.3d at 729 (citing In
re C.H., 89 S.W.3d at 27).
is a strong presumption that keeping a child with a parent is
in the child's best interest. In re R.R., 209
S.W.3d at 116. But prompt and permanent placement of a child
in a safe environment is also presumed to be in the
child's best interest. Tex. Fam. Code Ann. §
263.307(a). The best interest analysis evaluates the best
interest of the child, not that of the parent. In re
A.C.B., 198 S.W.3d 294, 298 (Tex. App.-Amarillo 2006, no
pet.); see In re M.G.D., 108 S.W.3d 508, 515 (Tex.
App.-Houston [14th Dist.] 2003, pet. denied) (noting
"the Legislature made clear that courts cannot leave
children in foster homes indefinitely while existing parents
try to improve themselves and their conditions").
The Department's cases against the mother:
re D.T. & A.T., 07-19-00071-CV and In re